The VA Accountability First and Appeals Modernization Act of 2016: 5 Things Every Federal Employee Should Know

red-5On September 14, 2016, the US House of Representatives passed HR 5620, the VA Accountability First and Appeals Modernization Act of 2016. When we dig into the bill, there is a lot more to it than the title might lead you to believe. In fact, the bill (which has not yet passed the Senate) contains a number of provisions that most advocates for the federal workforce consider to be substantial lessening of civil service protection.

HR 5620 includes both whistleblower and employee discipline/appeals language. It also has different provisions for  Senior Executives and the rest of the workforce. This post focuses on the workforce provisions that affect everyone but Senior Execs. The next post will address the SES changes. Here are the key workforce provisions of the bill:

General Provisions

The Secretary may remove or demote an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the individual warrants such removal or demotion. Note: this provision also allows the Secretary to reduce an employee’s pay within a grade level.

Pay and Administrative Leave

(1) Employees demoted under the proposed provisions would immediately see their pay reduced to the new rate of pay. 
(2) Demoted employees could not be placed on administrative leave or any other category of paid leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the individual reports for duty. 

Notice to Congress

Not later than 30 days after removing or demoting an individual under subsection (a), the Secretary must notify Congress of the removal or demotion and the reason.

Procedure

  • The period for notice and response is reduced to no more than 10 calendar days.
  • The performance provisions of Chapter 43 (including performance improvement periods) would not apply to a removal or demotion under this section.
  • The time to appeal to MSPB is reduced to 7 days after the date of a removal or demotion.
  • Removals or demotions could be appealed to the Merit Systems Protection Board, subject to new restrictions imposed by the bill.

Expedited Review by MSPB

  • MSPB has to issue a decision not later than 60 days after the date of the appeal.
  • MSPB must uphold the decision of the Secretary to remove or demote an employee under subsection (a) if the decision is supported by substantial evidence.
  • MSPB decisions may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5.
  • If MSPB cannot issue a decision in 60 days, the removal or demotion is final. MSPB then has 14 days to notify Congress of the reasons why MSPB did not issue a timely decision.
  • MSPB cannot stay any removal or demotion.
  • During the period of the appeal, the employee may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits.
  • To the maximum extent practicable, the Secretary must provide MSPB with information and assistance as may be necessary to expedite the appeal.

Recoupment of bonuses or awards paid to employees of Department

Notwithstanding any other provision of law, the Secretary may issue an order directing an employee of the Department to repay the amount, or a portion of the amount, of any award or bonus paid to the employee under title 5. The employee has to be notified and given an opportunity to respond, along with “an opportunity to appeal the order to another department or agency of the Federal Government.” If the agency hearing the appeal does not make a decision within 30 days, the Secretary’s decision stands.
 
The 5 Biggest Takeaways 
  1. If it becomes law, it will make it easier to fire employees in the Department of Veterans Affairs. The General Provisions section shifts the reason for a removal from what is typical under Title 5 (the provisions that cover most employees). Title 5 allows OPM to establish the regulations for removals and demotions, and says they can be done “…only for such cause as will promote the efficiency of the service.” Getting rid of the “efficiency of the service” provision and replacing it with a Secretarial determination is a big change. It replaces a standard supported by years of case law with something that clearly is intended to give the Secretary more authority to determine when a removal or demotion is needed and appropriate.
  2. Congress intends to keep this issue alive for a long time. The Notice to Congress is a clear indication that the Congress intends to continue to “help” the Executive Branch through oversight of executive decisions regarding personnel. It does not pose a separation of powers problem because it is just notification and does not grant any new authority to the Congress.
  3. A ‘rush to judgment” is apparently no longer a bad thing. The Procedure section is important. It reduces the total time for notice and response to only 10 calendar days and the time to appeal to MSPB to only 7 days. That makes it harder for an employee or his/her representative to prepare a response to the charges and mount an effective defense. Elimination of the provisions of Chapter 43 of Title 5 means there is no performance improvement period (PIP) for poor performers.
  4. When to government does not do its job, the government wins. The MSPB provisions are where we find the biggest changes. MSPB is given only 60 days to complete its process and issue a decision. If it does not complete it in time, the employee loses. In addition, the standard for MSPB’s review is changed to require MSPB to uphold the decision to remove or demote an employee if the decision is supported by substantial evidence. “Substantial evidence” is a lighter burden of proof. It means the department must provide enough evidence that a reasonable mind could accept as adequate to support its decision. The standard that applies in removals and demotions is currently “a preponderance of the evidence.” That means there has to be more evidence in favor of the action than evidence against it. The change that strikes many folks as unfair is that the employee loses if MSPB does not issue a timely decision. The idea that an employee would be punished for the government failing to act is new to federal personnel law.
  5. Faster firing with less review does not mean there will be a lot of firings. As we have seen with probationary employees (the easiest firing process there is), the ability to fire someone does not mean managers will actually do it. The bill does not require the training for managers and the revised selection processes to become a manager that would help managers to step up and deal with employee misconduct.
Feds outside of VA may wonder why they should care about this bill. After all, it applies to VA and no one else. The truth is that these provisions are harbingers of things to come for the entire federal workforce. If the bill becomes law and is sustained in court (and that is not guaranteed), the next logical step that its supporters will take is to expand the provisions government wide. 
 
My belief is that an approach to leading an organization that focuses on who you can fire misses the greatest opportunities to improve an agency. The Department of Veterans Affairs has 368,000 employees. Even if we assumed 10% should be fired, that still leaves over 330,000 employees who carry out the vital work of the department. I would like to see far more attention paid to developing and supporting the 90% and helping them do a great job for our Veterans. 
 
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OPM’s Revamped USAJobs – Improved or Just a New Coat of Paint?

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OPM’s New Look for USAJobs

OPM has revamped its USAJobs website, adding a new features and an improved look and feel. The updates are the latest in OPM’s ongoing efforts to make USAJobs more user-friendly and easier to search. The site has a troubled history, chiefly because of the problems it experienced when OPM brought it in-house in October 2011.

The 2011 rollout of USAJobs certainly did not cover OPM with glory. The site suffered from capacity and usability issues and it clearly needed more testing before going live. When the system had 45 million page views on its second day, it choked. OPM and the CHCO Council worked their way through the problems, stabilized the system, then promised to improve it and deliver the kind of job portal the government needs.

One of problems with a botched rollout is that it can taint a product for years to come. Regardless of what OPM did to fix USAJobs, some folks will always have the 2011 experience as their frame of reference, even if they did not personally experience problems with the system. That problem is not unique to OPM – the bad taste left by product rollouts can ruin perceptions of a product, sometimes forever.

OPM resisted calls to outsource USAJobs again, and in the years since has responded rather effectively to the many complaints they received. Most recently, Acting Director Beth Cobert released a statement on September 12 saying “I’m really excited about all of the progress we have made with USAJOBS. But this doesn’t mean our work is done. The USAJOBS team here at OPM will continue to solicit user feedback and make continuous enhancements to the website to improve the experience for applicants interested in Federal service.” The OPM statement also outlined new features of the site, saying “Some of the updates from the past year include delivering a mobile-friendly responsive design website that replaced the USAJOBS app, a revised, step-by-step application process, a new user interface, a new help center, a new user profile experience, Federal job “mythbusters,” and a new landing page to draw users in to create a profile and begin their job search.” OPM posted a USAJobs timeline that shows the evolution of the site over the 20 years it has existed, including some big numbers showing how much activity the site sees every year. The numbers are impressive – 11 million accounts, 16 million resumes, 14,000 jobs available every day, and 1 billion (yes, with a B) searches per year.

screen-shot-2016-09-13-at-3-06-31-pmOverall, the improvements are significant. The site is easier to navigate, has an excellent step-by-step guide to the hiring process, and offers improved help for users. The new landing page makes it easier for a newbie to find the information they need. But – there are still areas that could stand improvement. Stability of the site has improved greatly over the years, but there are still occasional glitches. While I was reviewing the site for this post, I spent several minutes getting an error message when I tried searching. Search itself is also mixed bag. Over the years OPM has greatly improved the search function. If you select advanced search, it is not very difficult to find jobs. The basic search function on the home page is less satisfying. It is a keyword search and the nature of keyword searches is that they are not always helpful. For example, if you search for “human resources” you will get thousands of hits. Why? Most job announcements tell applicants to contact human resources with questions, or to send documents to human resources.

Because keyword searches are not as useful, the USAJobs “advanced search” option should be more readily accessible to users. That means users who are unfamiliar with the site are likely to use the basic keyword search, then move on to refining the search. It works, but users should be able to go directly from the home page to the advanced search option.

Regardless of the improvements to USAJobs, OPM is going to take a lot of heat for problems with the federal hiring process, even when those problems are not caused by OPM. For example, Federal News Radio had a May 16, 2016 article that covered the complaints some folks had about USAJobs. Those complaints included unqualified applicants who are referred to selecting officials, lack of responses to applicants, and the need to use social media for recruiting. Let’s take them one-by-one.

  • Unqualified applicants are the responsibility of agencies. OPM writes the basic qualifications requirements, but agencies have tremendous flexibility in how they are used. Unless an agency pays OPM to run the hiring process, agencies write the job descriptions, identify specialized experience, decide who is and who is not qualified, and determine who goes on a referral certificate.
  • Agencies are responsible for responding to applicants.  Applicant tracking systems such USA Staffing, Monster and Acendre, used by the majority of agencies, make it simple for agencies to communicate with applicants. Some agencies are great at communicating with applicants – others not so much.
  • Announcing vacancies on USAJobs is required for most agencies, but that is to make it more likely applicants can actually find the jobs. If every agency advertised when and where it wanted, finding federal jobs would be even harder than it is today. There is nothing that prohibits agencies from using social media to recruit. In fact, some are doing that right now. LinkedIn, for example, has many federal jobs listed. NASA has a dedicated NASA People twitter feed. Other agencies are also using social media effectively and do not need to rely solely on OPM to do it for them.

To answer the question I started with, in this case beauty is more than skin deep.  I believe OPM has made excellent progress in the past year. It is a better site, more useful, and is continuing to improve. They have gotten into a practice of ongoing improvements based on user feedback. Under Beth Cobert’s leadership, I have no doubt they will continue to refine and improve the system.

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